And the difference is???
One or two legal points to consider here:
- The Fourteenth Amendment doesn’t protect you from discrimination.
I know this point escapes most people who have not studied American constitutional law or history. They read the following clause from the amendment:
and assume that “equal protection of the laws” means that all people must be treated equally, i.e., no discrimination. This is a fundamental misunderstanding of the meaning of that clause.
All laws discriminate. From Merriam-Webster Online:
A law that provides punishment for murder discriminates those who commit murder from those who don’t. It discriminates against those who do. Indeed, the fundamental business of government is to discriminate, that is, to establish dividing lines that result in the differentiation of legal conduct from illegal conduct, or permissible conduct from impermissible conduct.
Let’s take the “murder” situation one step further. Some “homicide” we do not consider sufficiently socially unacceptable that we make it illegal conduct. Thus, we may, for example, exempt from prosecution for murder those who commit intentional homicide in “self-defense.” This discriminates those who commit murder in “self-defense” from those who commit murder for reasons other than “self-defense.” We have discriminated in favor of self-defending murderers.
“Equal protection of the law” does not mean all people are treated the same by the law. They can’t be, or else we wouldn’t be able to pass laws. As we have seen, we have to be able to draw lines between groups of individuals to effectively govern, indeed, to govern at all, effectively or not. We must then assume that the Congress, in proposing the Fourteenth Amendment, meant something else by these words.
The Supreme Court of the United States has had difficulty deciding how exactly to interpret the meaning of this phrase, and the phrase “due process of law,” in the 133 years since the amendment was adopted. The debate over interpretation is usually centered around the degree to which the Court feels it should arbitrate the validity of laws passed by Congress or a state legislature. At one extreme, the Court could take the position that, as long as the “procedure” to which one is subjected by government is “fair,” the Court should not intervene, regardless of whether the “result” is “fair.” Under such a standard, the Court could intervene to nullify a law passed by California allowing posses of angry citizens to capture and lynch suspected murderers, on the basis that there was no ability on the part of the suspects to have a trial with neutral arbiters of fact and law, but would be unable to nullify a law allowing those who murder blond-haired people to assert a “blond-haired people should die” defense to murder charges at trial. It should be noted here that a failure to provide “equal protection” is usually considered a failure to provide “due process” anymore; there is little distinction between the two.
At the other end of the spectrum, one can argue that the Court should always review governmental classifications of people to determine if the attempt to discriminate between groups is something society will allow. Under such a scheme, not only would the Court review a law making it a crime to exclude blacks from service in a restaurant, but also would review a law making it illegal to drive in the left-hand lane of a two lane each way freeway. In the latter case, if the Court decided that this unreasonably interfered with the right of people to avoid having to change lanes, thus providing an advantage to those who always drive fast, it could strike the law down as a violation of “equal protection.” Obviously, there are review standards that can exist in between these two extremes.
To decide how to apply the clauses, we should start with an understanding of the purpose of the Fourteenth Amendment. The first two sections deal with the issue of how to treat those persons previously denied rights as citizens by some states, and by the federal government as a result of the Dred Scott decision; namely, negros. The first section is an affirmation that such people are citizens, both of the United States and the state within which they reside. Their privileges and immunities as citizens of the US can’t be abriged by the states (contrary to popular belief, this isn’t a dead letter clause; your right to travel among the states and your right to vote in federal elections has been declared by the Court to be among the privileges and immunities you have as a citizen of the country, as distinguished from your rights as citizens if individual states. States are then precluded from violating the due process rights of any person, and must provide persons equal protection. Finally, representation of the states in the House shall be determined by counting all persons as a whole person (remember that the Constitution originally apportioned by counting slaves as less than a full person). These provisions are clearly, at a minimum, intended to redress the issues presented by the consistent treatment of negros as non-persons by the states and the federal government.
There are those who assert that the amendment should be read as addressing more than that. Some would assert that the intention is found in the plain reading of the law: that there should no longer be invidious discrimination among groups in society, and that the federal court system should become the watchdog to make certain that all attempts by the states to infringe upon individual rights will be nullified. Under such a reading, the equal protection clause would prevent not only a law that distinguished whites from blacks, but also blondes from brunettes, men from women, children from adults, etc. The difficulty with such a reading is, as we have seen at the beginning of this post, that all laws distinguish among groups of individuals; the Court in wielding such a power would perforce be required to decide which distinctions would be allowable, and which would not be allowable. Given that some distinctions may have rationales society approves of in some cases, but not in others, this type of pick-and-choose application gets sticky, at best.
The Supreme Court itself rejected this concept within five years of the passage of the amendment. In the Slaughterhouse Cases, 83 U.S. (16 Wall.) 36, the Court asserted that the Fourteenth Amendment, in conjunction with the Thirteenth and Fifteenth Amendments, had as its sole purpose addressing the issue of slavery and the former slaves. An analysis of the cases found at FindLaw says:
Of course, within a bare thirty years, that is just what the Court became. However, it was not protecting minorities and individuals; it was protecting businesses from liberal state legislatures who were attempting to find Twentieth Century solutions to Nineteenth Century issues, such as labor conditions, railroad safety, rate and price control, etc. In a series of decisions beginning in 1897, the Court began striking down state legislation affecting economic issues on the basis that such legislation interfered with either due process or equal protection rights of various corporations. From the Allgeyer v. Louisiana decision (165 U.S. 578 (1897)) through 1936, the Court stated that it would uphold legislation that bore reasonable relation to a legitimate end, but the Court reserved the right to review the proposed relationship and the legitimacy of the “end.” In short, the Court became a reviewer of legislation for conformity to its own viewpoint on economic and social issues. Lest anyone think this was a one-way street only, there were applications of this doctrine to such issues as the right to make decisions about education for oneself (Meyer v. Nebraska, 262 U.S. 390 (1923)), freedom of speech (Gitlow v. New York, 268 U.S. 652 (1925)) and discrimination against blacks (e.g.: Nixon v. Herndon, 273 U.S. 536 (1927). But in the seminal case of Lochner v. New York, 198 U.S. 45 (1905), the Court struck down legislation limiting bakers to 60 hours of work in a week and 10 hours in a day, because it unreasonably interfered with the “liberty” to contract between and employer and an employee, a liberty guaranteed by the Fourteenth Amendment. In the opinion of the Court, the legislation wasn’t a true health or safety measure, and, thus, an improper exercise of police power to further social ends. *This case demonstrates the potential for abuse whenever the Court abrogates to itself the power to review the purpose and result of legislation.
Fortunately, President Roosevelt in 1937 decided that this sort of obstruction of needed social legislation had to end. He threatened the Court with a scheme to “pack” it with supporters of his own views. Although Congress in the end did not approve the scheme, the Court got the message and, starting in 1937, begain issuing decisions in which it refused to review the substance of social legislation affecting economic interests. While the legislation still had to be rationally related to a legitimate interest, as long as the state could articulate some such rational relation, the Court will accept that relationship and refuse to invalidate the law.
The question, then, is how to make sure to protect the former slaves on the one hand, which certainly involves substantial review of the purpose and result of legislation, without enacting a review scheme that extends that concept to all areas of the law. The answer, for the last 70 years, has been to treat legislation that either (a) affects a “fundamental right” or (b) draws a “suspect classification” differently from legislation not affecting such rights or drawing such classifications. In reviewing such legislation, it must be “neccessary” to promote a “compelling” state interest. This is what we call “strict scrutiny.” Needless to say, it is usually very difficult for the state to convince the Court that legislation that discriminates against a protected class is “neccessary” to promote a “compelling” interest. The same is true of laws that restrict the content of political speech.
Of course, nothing that the Court does ever stays simple and full of bright lines. Often, legislation affects issues and classifications of people that, while they offend our sensibilities somewhat, don’t shock us as much as laws discriminating against people on the basis of belonging to a racial minority do. In recent years, the Court has applied a middle level of scrutiny to such cases. This level of scrutiny has been formulated with various different words, but basically comes down to deciding if the legislation bears some “substantial relationship” to an “important” government objective. This is somewhat less harsh than the review under “strict scrutiny”, but it doesn’t yield the issue up to the “conscience” of the legislature, either.
Homosexuals are not former slaves. This statement isn’t an attempt to equate one group with the other. It simply notes that the fact that the group being classified in the one case may not be viewed by the Court as being as “suspect” as the group being classified in the other case. The court has applied “strict scrutiny” only to race-based classifications, national origin-based classifications, and, to a lesser extent, classifications based on status as an “alien.” Similarly, several “fundamental rights”, while entitled to “strict scrutiny,” often get something less strict in the way of a review than race-based classifications (see, e.g., recent voting rights cases). A read of cases involving the nebulous “right to privacy” can cause a headache when trying to articulate an actual standard of review applicable. So there should be no great surprise that there may be a different treatment of classifications based on sexual preference from classifications based on race.
Indeed, not even classifications based on gender receive the same treatment. Such classifications spawned the middle level of review in the first place, when it became apparent to the Court that attempts to draw classifications based on gender might well have “legitimate” bases, that is, they promoted interests society as a whole, and women in particular, would want promoted. If discrimination against women isn’t protected by the same level of scrutiny at the Supreme Court as discrimination against blacks, it shouldn’t be too surprising that discrimination based on sexual preference might not receive that level of scrutiny, either.
In short: all laws discriminate. Not all laws are a violation of “equal protection of the law.” Whether or not any given legislation violates “equal protection” or “due process” will depend on the level of scrutiny given by the Supreme Court to the asserted governmental interest being protected, and the closeness of the relationship between the means used and the need being addressed. States can imprison murderers because the need is legitimate, and the classification is not “suspect.” It can discriminate between “self-defense” murderers and “non-self-defense” murderers without worry that the Court will apply its own viewpoint on “self-defense,” though the Court might apply some level of review higher than “rational relationship.” Whether or not laws by the states precluding “marriage” between people of the same sex violate the Fourteenth Amendment would depend on the level of deference paid by the courts to the state legislatures. It is not an open and shut issue under the “plain meaning” of the Fourteenth Amendment.
2. The Full Faith and Credit Clause Doesn’t Force Acceptance of Marriages Valid in One State by All Other States.
I know this particular straw man is the focus of much attention as the reason to have a federal constitutional amendment. It was the basis for the Defense of Marriage Act. And the concept that, should one state allow “gay” marriages, all other states would have to accept them is bunk. That’s a technical term we lawyers use for stuff that is without merit. 
Cases addressing this section make a division between situations where the courts of a state are asked to apply the judgment of the courts of a sister state from situations where a state is asked to apply the “public Acts” and “Records” of a sister state. In general, where there is no prior judgment, the currently accepted general rule is that the forum state must apply the “foreign” law, subject to its own interest in furthering its own public policy. As the Supreme Court stated it:
To date, no cases regarding the effect of a marriage in one state not recognized as valid by another state have issued from the Supreme Court. There is a commonly stated old maxim of law that marriage in one nation will be recognized in another nation; this is part of a body of law termed “private international law,” or, if you will, “conflict of laws.” However, some other such maxims of “conflicts” have been modified by the Court in applying Section 1 of Article IV, especially where contractural issues have been involved. So it is hardly clear that the Constitution requires that State A provide benefits, say, based upon a claimed marital relationship entered into in State B, impermissible in State A. I made that conclusion with respect to this very issue five years ago in this thread, and I’ve seen nothing in the interim to make me change my mind.
Sorry for the length. I get involved. 
There was no bubble burst because I did not state that Lawrence was decided on Equal Protection. The point I made, and both you and Dewey repeated obviously misconstruing my point, was that the Court considered Equal Protection and decided that a finding on that did not accomplish as much as Due Process. So obviously they could have found on Equal Protection but decided to be more inclusive and found on Due Process. Equal Protection was advanced by finding for Due Process.
Dr. Bob Jones (of Bob Jones University), Pat Robertson and Jerry Falwell were all over the news last night saying how certain they were that a constitutional amendment would breeze through Congress and be ratified by the states. And this just in on my pager:
(bolding mine)
Bush wants it to happen this year??
What are these people thinking?
Smoke and mirrors. By emphaticly demanding what he cannot expect to achieve, Fearless Misleader establishes himself as the bold crusader against the dreaded Homosexual Agenda. If it doesn’t happen, and it won’t, he can simply point out to his knuckle-walking constituents that the liburuhls are thwarting God’s Will.
Those Republican’s who view this whole magilla with horror and disdain will not be forced to reckon with thier consciences until long after the issue has been studied and committeed half to death.
For the present and the foreseeable future, this is a grandstand play without consequence, full of sound and fury, signifying nothing.
Good post, DSYoung.
Unfortunately, both Dewey and I have been singing the much the same song to Homebrew, who evidently regards the Fourteenth Amendment as the source of a truly astonishing breadth of rights. Sadly, I feel that your extensive analysis will continue to fall upon deaf ears.
Nonsense, sir.
Equal protection of the law also protects against laws that classify people on the basis of their ability to exercise a fundamental right. Thus, for example, sterilization cannot be ordered for those convicted and sentenced to imprisonment for two or more times for crimes “amounting to felonies of moral turpitude” (Skinner v. Oklahoma, 316 U.S. 535 (1942)), because to do so affects the fundamental right of one classification of people, for which no compelling reason could be given in favor of creating. Similarly, in Eisenstadt v. Baird, 405 U.S. 438 (1972) the Court invalidated a statute precluding delivery of contraceptives to unmarried persons as a violation of equal protection. Without specifically saying so, the Court reviewed with independent scrutiny the same type of infringment of the fundamental right of privacy it had ennunciated (in chaotic fashion) in Griswold v. Connecticut. Other examples include classifications that infringe on the right to vote (see, e.g., Kramer v. Union Free School District, 395 U.S. 621 (1969)), and the concept of classifying among those exercising the right to free speech (Police Department of Chicago v. Mosley, 408 U.S. 92 (1972) and Carey v. Brown, 447 U.S. 455 (1980)).
Distinguishing between the clauses is a bit silly, any way; the same approaches to scrutiny apply either way, especially since there is no equal protection clause applicable to the federal government, yet all the same concepts apply. Still, if we’re going to get technical about such things, let’s at least get the basics correct, I think. 
DSYoungEsq: Ahem. You do realize that the words you have attributed to me were in fact posted by James Madison, right?
Don’t be so fast to dismiss the chances of this amendment making headway. I also originally thought that, as a contitutional amendment this had a snowball’s chance in Crawford of suceeding, but I’m beginning to wonder…
Wonder what if the liberal backlash against this manouver winds up being so strong that it forces the hands of otherwise more moderately minded Senators? What if mayors and judges all over the country begin following the lead of San Fransico and basically starting an all out assault on existing marriage laws? What if the fear of this amendment makes liberal activists so crazy that they lose all perspective and patience and start openly rebelling against the established rule of law. (Which is exactly what’s been going on in SF).
No if this thing moves too far, too fast, the only countermeasure left open to Bush and the conservative elements of both parties is to push even harder for this amendment. In the end the forces of law and order will win a battle over this amendment, IF THE BATTLE IS PUSHED TO THAT EXTREME BY THE IMPATIENT ACTIONS OF THE SUPPORTERS OF GAY MARRIAGE.
How much longer are they supposed to wait? And why should they?
Total number of Constitutional Amendments introduced in Congress since 1789: More than 10,000.
Number that have been ratified: 27.
“A more searching form of rational basis” sounds to me remarkably like “intermediate scrutiny” (especially when you use the alternate term of “strict rationality” – who coined that, by the way?).
I admit I may be missing a nuance in thinking that – but it makes sense.
Question: why do you apparently have a problem with “intermediate scrutiny” (“which I accept on stare decisis grounds” was I believe the phrase you used or a close paraphrase)?
Homebrew (or anyone else), do you have any idea where that “It also applies to fundamental rights” line from the description of strict scrutiny comes from? Is it rooted in a decision? (I suspect you can guess why I ask.)
I’m also very concerned about what the heck the Full Faith and Credit clause does mean in AD 2004 jurisprudence. Apparently any state can simply disregard any old decision it chooses to, by making the contrary a part of its “legitimate public policy.” (Too bad John C. Calhoun didn’t have this bit of legal reasoning available to him – he could have prevented a lot of bad news by simply encouraging his supporters to adopt “legitimate public policies” to cover what they wanted to protect.)
“A more searching form of rational basis” sounds to me remarkably like “intermediate scrutiny” (especially when you use the alternate term of “strict rationality” – who coined that, by the way?).
I admit I may be missing a nuance in thinking that – but it makes sense.
Question: why do you apparently have a problem with “intermediate scrutiny” (“which I accept on stare decisis grounds” was I believe the phrase you used or a close paraphrase)?
Homebrew (or anyone else), do you have any idea where that “It also applies to fundamental rights” line from the description of strict scrutiny comes from? Is it rooted in a decision? (I suspect you can guess why I ask.)
I’m also very concerned about what the heck the Full Faith and Credit clause does mean in AD 2004 jurisprudence. Apparently any state can simply disregard any old decision it chooses to, by making the contrary a part of its “legitimate public policy.” (Too bad John C. Calhoun didn’t have this bit of legal reasoning available to him – he could have prevented a lot of bad news by simply encouraging his supporters to adopt “legitimate public policies” to cover what they wanted to protect.)
What happens to the viability of this amendment when the DOMA is challenged at the SCotUS level? I think that fundamentally changes the equation.
The “need” for this amendment is predicated on the idea that the DOMA could be found unconstitutional. To much of the country, that is an abstraction. But come May, there will be married gay folk in MA. Some questions for the lawyers participating in this thread:
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How long do you think it will be before the DOMA is challenged? I can’t imagine that laywers/law firms are **not ** lining up to be the ones to help set this legal precedent.
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Will a challenge need to go up thru the court system, or will it go right to the SCotUS?
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How likely do you think it is that the law would be struck down?
Can you offer a concrete example?
If I sue you in Virginia and get a judgement against you, I suppose North Carolina could ignore that judgement – if and only if some aspect of the suit was against the public policy of North Carolina. If my suit in Virginia was over a gambling debt, and Virginia supported such a suit, but it was contrary to North Carolina public policy to enforce gambling debts, then the public policy exception is working the way it’s meant to.
But if the suit was over a breach of contract for house painting, then it’s hard to see how it would run afoul of North Carolina’s public policy.
What kinds of specifics were you imagining?
- Rick
That’s sort of the point – when is a state entitled to ignore FF&C on the basis of “legitimate public policy”? What are the limits on “legitimate public policy”? I keep looking for some clearcut criteria, and don’t see them. Can a state be as arbitrary as it sounds on defining it?
Does the FF&C clause only apply in the absence of any statute to the contrary in a state? So that if a state had no DOMA on its books, and no reference to gay marriage, the FF&C clause would apply to the MA marriages. It would not, however, apply to CA (which has a DOMA on the books) wrt to the gay marriages in MA.
I assume it means something different than intermediate scrutiny because hey, otherwise O’Conner would have presumably just said “intermediate scrutiny.” It certainly sounds like she thinks she’s doing something different.
Because, as I’ve said, the equal protection clause is most properly understood as a simple prohibition on racial discrimination on the part of government. It simply doesn’t apply to gender – I accept those decisions on stare decisis grounds alone.
I didn’t say they should wait. I just think that supporters may wish to carefully consider the consequences of their actions. The short term benefit of conferring “marriage” on a large number (but by no means all) homosexual couples could come back to bite them on the ass (no pun intended).
Sorry for the all caps before. I usually don’t shout.
Yes, heaven forbid homosexuals get to enjoy equal rights and privileges under the law as heterosexuals do. :rolleyes:
If the right-wing fundamentalists push harder to get this amendment passed, it will reveal them as the bigoted homophobes that they are.